Citation Nr: 1046503
Decision Date: 12/13/10 Archive Date: 12/20/10
DOCKET NO. 09-24 210 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office Center
in Wichita, Kansas
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent for
posttraumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and his wife
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1970 to December
1975. This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2008 rating decision by the
Department of Veterans Affairs (VA) Regional Office in Wichita,
Kansas (RO).
FINDING OF FACT
Since the initial grant of service connection, the Veteran's
posttraumatic stress disorder (PTSD) has been manifested by
depressed, anxious, irritable, euthymic, good, and frustrated
mood; normal, broad, appropriate, or depressed affect; intrusive
memories; nightmares; flashbacks; exaggerated startle response;
anger outbursts; detachment and estrangement from others; social
isolation and withdrawal; sleep disturbance; limited or good
impulse control; hypervigilance; irritability; panic attacks;
avoidance of trauma-related stimuli; suicidal and homicidal
ideation without plan or intent; and feelings of guilt and
worthlessness. The evidence also shows that the Veteran had good
grooming and hygiene; good eye contact; normal speech; fair or
intact insight and judgment; logical thought process; and good or
normal memory.
CONCLUSION OF LAW
The criteria for an initial evaluation of 30 percent, but no
more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107
(West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA has certain notice and assistance requirements. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Upon
receipt of a substantially complete application for benefits, VA
must notify the Veteran of what information or evidence is needed
in order to substantiate the claim, and it must assist the
Veteran by making reasonable efforts to obtain the evidence
needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Prior to the initial adjudication of the Veteran's claim, a May
2008 letter satisfied the duty to notify provisions. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183,
187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491
(2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated
and remanded, Vazquez-Flores v. Shinseki, No. 2008-7150 (Fed.
Cir. Sept. 4, 2009). Further, the purpose behind the notice
requirement has been satisfied because the Veteran has been
afforded a meaningful opportunity to participate effectively in
the processing of his claim, to include the opportunity to
present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892,
896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887
(Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki,
556 U.S. - (2009).
The duty to assist the Veteran has also been satisfied in this
case. The Veteran's service treatment records, service personnel
records, VA medical treatment records, and identified private
medical treatment records have been obtained. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159. Although the Veteran's Social
Security Administration (SSA) records have not been associated
with the claims file, the Veteran reported that he is receiving
SSA disability benefits for a back disorder, and not for a
psychiatric disorder. The duty to assist extends to obtaining
SSA records where they are relevant to the issue under
consideration. Murinscak v. Derwinski, 2 Vet. App. 363, 370
(1992). Here, the Board finds that the Veteran's SSA records are
not relevant because they pertain to a back disability, and not
his service-connected psychiatric disability. Accordingly, there
is no prejudice to the Veteran in not obtaining such records.
The Veteran was provided with a VA examination in October 2008
with regard to his PTSD. He has not indicated that he found this
examination to be inadequate. 38 C.F.R. § 3.159(c)(4); Barr v.
Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that
the VA examination provided in this case is adequate, as it
provides sufficient information and detail to determine the
severity of the Veteran's service-connected PTSD in accordance
with the pertinent rating criteria. Accordingly, VA's duty to
assist with respect to obtaining a VA examination or opinion
regarding the issue on appeal has been met. 38 C.F.R. §
3.159(c)(4).
Finally, there is no indication in the record that additional
evidence relevant to the issue being decided herein is available
and not part of the record. See Pelegrini v. Principi, 18 Vet.
App. 112 (2004). As there is no indication that any failure on
the part of VA to provide additional notice or assistance
reasonably affects the outcome of this case, the Board finds that
any such failure is harmless. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities (Rating
Schedule). 38 C.F.R. Part 4 (2010). The Rating Schedule is
primarily a guide in the evaluation of disability resulting from
all types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the average
impairment of earning capacity resulting from such diseases and
injuries and their residual conditions in civilian occupations.
See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). Pertinent
regulations do not require that all cases show all findings
specified by the Rating Schedule, but that findings sufficient to
identify the disease and the resulting disability and above all,
coordination of the rating with impairment of function, will be
expected in all cases. 38 C.F.R. § 4.21 (2010); see also
Mauerhan v. Principi, 16 Vet. App. 436 (2002).
In considering the severity of a disability, it is essential to
trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2,
4.41 (2010). Consideration of the whole recorded history is
necessary so that a rating may accurately reflect the elements of
disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.
App. 282 (1991). Although the regulations do not give past
medical reports precedence over current findings, the Board is to
consider the Veteran's medical history in determining the
applicability of a higher rating for the entire period in which
the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34
(1999).
As the current appeal is based on the assignment of an initial
rating for a disability following the initial award of service
connection for that disability, evidence contemporaneous with the
claim and the initial rating decision is most probative of the
degree of disability existing when the initial rating was
assigned and should be the evidence "used to decide whether an
original rating on appeal was erroneous." Fenderson v. West, 12
Vet. App. 119, 126 (1999). If later evidence indicates that the
degree of disability increased or decreased following the
assignment of the initial rating, "staged" ratings may be
assigned for separate periods of time. Id.
In an October 2008 rating decision, the RO granted service
connection for PTSD and assigned an initial evaluation of 10
percent, effective April 10, 2008, under the provisions of
38 C.F.R. § 4.130, Diagnostic Code 9411. In December 2008, the
Veteran filed a notice of disagreement with regard to the
evaluation assigned, and in June 2009, he perfected his appeal.
The current regulations establish a general rating formula for
mental disorders. 38 C.F.R. § 4.130. Ratings are assigned
according to the manifestation of particular symptoms. However,
the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates
that the symptoms after that phrase are not intended to
constitute an exhaustive list, but rather are to serve as
examples of the type and degree of the symptoms, or their
effects, that would justify a particular rating. Mauerhan, 16
Vet. App. 436. Accordingly, the evidence considered in
determining the level of impairment under 38 C.F.R. § 4.130 is
not restricted to the symptoms provided in the diagnostic code.
Instead, VA must consider all symptoms of a claimant's condition
that affect the level of occupational and social impairment,
including, if applicable, those identified in the DSM-IV
(American Psychiatric Association: Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 1994)). Id.
Pursuant to Diagnostic Code 9411, PTSD is rated 10 percent
disabling when there is occupational and social impairment due to
mild or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or; symptoms controlled by continuous
medication. A 30 percent evaluation is warranted when there is
occupational and social impairment with occasional decrease in
work efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less often),
and chronic sleep impairment, mild memory loss (such as
forgetting names, directions, or recent events). A 50 percent
evaluation is warranted when there is occupational and social
impairment with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of motivation
and mood; and difficulty in establishing and maintaining
effective work and social relationships. 38 C.F.R. § 4.130,
Diagnostic Code 9411.
A 70 percent evaluation is warranted where there is objective
evidence demonstrating occupational and social impairment with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to suicidal ideation;
obsessional rituals which interfere with routine activities,
speech intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to function
independently, appropriately, or effectively; impaired impulse
control, such as unprovoked irritability with periods of
violence; spatial disorientation; neglect of personal appearance
and hygiene; difficulty in adapting to stressful circumstances,
including work or a work-like setting; and the inability to
establish and maintain effective relationships. A maximum 100
percent evaluation is for application when there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; and memory loss for names of
close relatives, own occupation, or own name. Id.
In evaluating the evidence, the Board has considered the various
Global Assessment of Functioning (GAF) scores that clinicians
have assigned. The GAF is a scale reflecting the psychological,
social, and occupational functioning on a hypothetical continuum
of mental health illness. See Diagnostic and Statistical Manual
of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8
Vet. App. 240 (1995). For example, a GAF score of 61-70 reflects
some mild symptoms (e.g., depressed mood and mild insomnia) or
some difficulty in social, occupational, or school functioning
(e.g., occasional truancy or theft within the household), but
generally functioning pretty well, and has some meaningful
interpersonal relationships. A GAF score of 51-60 indicates
moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts
with peers or co-workers). A GAF score of 41-50 reflects serious
symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job). DSM-IV at 46-47.
VA treatment records from March 2008 through February 2009 reveal
diagnoses of and treatment for PTSD. A March 2008 treatment
record notes a diagnosis of depression. The record indicates
that the Veteran had a long history of depression and possible
PTSD, and that screening was positive. Another March 2008 report
notes a diagnosis of unspecified mental disorder. In April 2008,
the Veteran reported loss of interest in doing things, depressed
mood, appetite disturbance, difficulty sleeping, decreased
energy, agitation or increased psychic anxiety, feelings of guilt
or worthlessness, difficulty concentrating, isolation,
withdrawal, and suicidal and homicidal ideation. The Veteran
also endorsed nightmares, exaggerated startle response,
detachment and estrangement from others, intrusive thoughts and
memories, flashbacks, avoidance of trauma-related stimuli, social
isolation, irritability, outbursts of anger, and hypervigilance.
The Veteran's physician prescribed Sertraline and Trazadone.
Another April 2008 treatment record notes the Veteran's
complaints of nightmares, sleep disturbance, flashbacks,
hypervigilance, depression, anger outbursts, feelings of rage,
feeling restless, panic attacks, avoidance of trauma-related
stimuli, exaggerated startle response, and memory and
concentration problems. He also reported that he checked his
windows and that when he left the house he checked outside to
make sure that it was safe. He noted that he watched doors and
windows when traveling, and that he could not have people behind
him. He stated that he has left full grocery carts in a store,
and that when someone touched him when he was asleep, he threw
them across the room. On one occasion while hunting, he fired
his gun everywhere as if in Vietnam and could have killed several
associates. The Veteran indicated that he was on SSA disability
since 2003, and that he previously worked as a motel manager, in
home remodeling, and as a truck driver. He reported that his
longest period of employment was 20 years. Mental status
examination revealed the Veteran to be casually and appropriately
dressed with good grooming. His attitude was cooperative and
tense with some anxiety. He was alert and fully oriented with
good eye contact. His speech was normal, his mood was depressed
with some anxiety and sporadic irritability, and his affect was
broad and appropriate. Thought process was relevant and goal-
directed. Concentration was fair with distractible attention.
Thought content revealed no delusions, but auditory and visual
hallucinations. He noted that he had a phobia of crowds and
denied obsessions and compulsions. He reported suicidal thoughts
without plan or intent and denied homicidal thoughts. Insight
and judgment were fair, and impulse control was limited. The
diagnoses were moderate PTSD with related panic attacks, moderate
recurrent depression, and generalized anxiety disorder. A GAF
score of 52 was assigned.
A third April 2008 VA treatment record reflects that the Veteran
reported depression, nightmares, lack of energy, irritability,
fear of crowds, poor sleep, lack of interest, poor appetite, low
energy, fleeting suicidal thoughts, exaggerated startle response,
anxiety, panic attacks, and checking windows and doors. The
Veteran indicated that medication helped him to sleep better and
that the nightmares were improved, but not completely better. He
noted that, in 1976, he went after a man with a gun because he
was trying to pick up the Veteran's daughters. He stated that he
could not trust people, that he had to sit in the corner of a
restaurant, and that he obsessed about things. The Veteran
reported that he was married for 30 years with one previous
marriage, and that he had three biological daughters and four
stepchildren. He noted that he was not working, as he was
disabled due to a back injury for which he was receiving SSA
disability benefits. Mental status examination revealed the
Veteran to have neat and clean grooming with appropriate
clothing. His personal hygiene was good, eye contact was good,
and attitude was cooperative. He was alert and fully oriented
and had the ability to pay attention for short periods of time.
His mood was depressed and his affect was congruent. His speech
was normal, and his thought process was logical. Thought content
was negative for delusions, obsessions, phobias, rituals, and
hallucinations. Insight and judgment were fair, and memory was
good. The diagnoses were PTSD and recurrent moderate major
depressive disorder. A GAF score of 55 was assigned.
In October 2008, the Veteran underwent a VA PTSD examination.
The Veteran reported recurrent and intrusive recollections,
nightmares, intense psychological distress at exposure to trauma-
related cues, avoidance of trauma-related stimuli, feelings of
detachment or estrangement from others, difficulty sleeping,
irritability or outbursts of anger, hypervigilance, exaggerated
startle response, social isolation, avoidance of large crowds,
anger outbursts, and lack of trust. The Veteran reported a happy
and stable second marriage and good relationships with two of his
three biological children and all of his stepchildren. The VA
examiner noted that the Veteran's PTSD symptoms "were not
reported to affect his work life." The VA examiner also
indicated that the Veteran received good benefit from his
psychiatric medications, as it was helping with sleep,
nightmares, anger outbursts, and being calmer. The Veteran
reported that he did not have any friends and that he did not
trust anyone. He noted that he tried to go to church, but that
he could not handle being around a crowd of people. He stated
that he enjoyed fishing and woodworking. He denied a history of
suicide attempts, violence, and assaultiveness.
Mental status examination revealed the Veteran to be clean,
neatly groomed, and casually and appropriately dressed.
Psychomotor activity and speech were unremarkable. Attitude was
cooperative, friendly, relaxed, and attentive. Mood was good and
affect was normal. Attention was intact. The Veteran was alert
and fully oriented. Thought process and thought content were
unremarkable with no delusions. The Veteran's judgment and
insight were intact. The VA examiner reported that the Veteran
did not have inappropriate behavior, obsessive or ritualistic
behavior, panic attacks, suicidal or homicidal thoughts, or
episodes of violence. Impulse control was reported to be good,
and the Veteran was able to maintain minimum personal hygiene.
There was no problem with performing the activities of daily
living. Memory was normal. The Veteran reported a history of
working as a truck driver for several companies, but that he was
not employed at that time. He explained that he was not working
due to a back injury in 2002 for which he was receiving SSA
disability benefits. The Veteran reported that he tended to move
often among activities, including business pursuits, but that it
was difficult for him to relate this to his military traumas.
The VA examiner diagnosed PTSD, and a GAF score of 65 was
assigned. The VA examiner noted that there were not clear
indicators of functional impairment other than social avoidance
and occasional psychological distress. The examiner also stated
that the Veteran's PTSD did not cause total occupational and
social impairment or deficiencies in judgment, thinking, family
relations, work, mood, or school, but that the PTSD symptoms did
cause reduced reliability and productivity. The examiner
concluded that a "diagnosis of PTSD of moderate severity is
clearly established."
An October 2008 VA treatment record notes the Veteran's
complaints of low mood, difficulty sleeping and eating, low
energy, lack of interest, and feelings of hopelessness and
worthlessness. The Veteran denied suicidal and homicidal
ideation, but noted more flashbacks, nightmares, and feelings of
depression. Mental status examination reveals that the Veteran
was alert and fully oriented with no auditory or visual
hallucinations and no delusions. Thought process was logical and
goal-directed. Mood was depressed and affect was congruent. The
diagnoses were moderate recurrent major depressive disorder and
PTSD. A GAF score of 55 was assigned. The VA physician
increased the Veteran's dosage of psychiatric medication.
A November 2008 treatment record reflects that the Veteran
reported feeling depressed and very angry. He reported sleep
disturbances, poor appetite, low energy, poor concentration, and
feeling hopeless and worthless. He denied suicidal and homicidal
ideation, but reported nightmares, flashbacks, and increased
irritability. Mental status examination revealed the Veteran to
be alert and fully oriented. He noted that he saw shadows out of
the corners of his eyes, and that he had to have the lights on
outside of his house at all times. He reported thoughts that
someone was watching him from the bushes or behind a tree. Mood
was depressed, frustrated, and irritable, and reported as a 3 on
a 1 to 10 scale. Affect was congruent with mood. Speech was
normal. The diagnoses were recurrent moderate major depressive
disorder and PTSD. A GAF score of 50 was assigned. The VA
physician increased the Veteran's dosage of psychiatric
medication again. Another November 2008 treatment record
reflects that the Veteran indicated that he was doing "better"
since his medication was increased. He indicated that his mood
was better, he was not as irritable, his appetite was fair, he
had increased energy, and that he had no more nightmares or
outbursts. He denied feeling hopeless or worthless. He also
denied suicidal and homicidal ideation as well as flashbacks.
Mental status examination revealed the Veteran to be alert and
fully oriented with no hallucinations or delusions. Thought
processes were logical and goal-directed. Mood was euthymic, and
affect was normal. Speech was also normal. The diagnoses were
recurrent moderate major depressive disorder and PTSD, and a GAF
score of 65 was assigned.
In January 2009, the Veteran reported that his mood was fairly
good, but that he had poor sleep, and "ok" appetite and energy.
Concentration was not as good as it had been. The Veteran
reported that he was feeling hopeless and worthless for a while,
but not at that time. He denied suicidal ideation. He noted
some homicidal ideation towards his ex-wife but indicated that he
would not act upon it. He complained of nightmares, flashbacks,
and exaggerated startle response. Mental status examination
revealed the Veteran to be alert and fully oriented. He was
cooperative with no hallucinations or delusions. Thought process
was logical and goal-directed. Mood was depressed, and noted to
be a 6 on a 1 to 10 scale. Affect was congruent with mood.
Speech was normal. The diagnoses were moderate recurrent major
depressive disorder and PTSD, and a GAF score of 60 was assigned.
A February 2009 VA treatment record notes that the Veteran
reported that his sleep and appetite were "ok," that his
concentration was fair, but that his energy was not as good as it
used to be. He noted that he was trying to get back into
woodworking. He denied feeling hopeless or worthless, and also
denied suicidal and homicidal ideation. He reported some
nightmares and flashbacks. His mood was a 6 on a 1 to 10 scale.
Mental status examination revealed the Veteran to be alert and
fully oriented with no hallucinations or delusions. He was
cooperative, and his thought processes were logical and goal-
directed. His mood was mildly depressed and his affect was
congruent. He noted that he sometimes thought he saw someone off
in the distance when he took his dogs out early in the morning.
The diagnoses were recurrent moderate major depressive disorder
and PTSD. A GAF score of 60 was assigned.
In August 2010, the Veteran and his wife presented testimony
before the Board. The Veteran reported symptoms including social
isolation, nightmares, flashbacks, short temper, sleep
disturbance, always feeling on guard, checking that doors and
windows are locked, avoidance of crowds, anger outbursts, and
exaggerated startle response. He reported that, over the prior
year and a half his symptoms were improved due to his medication,
but that he still had problems with temper, crowds, and
exaggerated startle response. He stated that he would not go to
church because of the crowds. He testified that he had a hard
time keeping a job, noting that he had close to 150 jobs in the
prior 40 and that the longest that he held a job was 3 years. He
stated that he was not employed, as he was receiving SSA
disability benefits for a back injury. He reported that he was
worried about hurting someone else. The Veteran's wife testified
that the Veteran was always on guard, was suspicious, and that he
had difficulty trusting others. She noted that the Veteran's
children and other family never stayed to visit for more than a
couple of hours and that his own daughters stayed away because
they thought he was weird. She indicated that his life was very
solitary. She also stated that the Veteran slept in a recliner
by the door, and not in his own bed. The Veteran's wife further
noted that she and the Veteran had been married for 32 years, and
that they moved around a lot, having lived on the beach and out
of a car. She testified that the Veteran had a tendency to take
off, going cross-country in a bus or flying if he has the money.
The lay testimony and statements provided by the Veteran and his
wife are competent and credible evidence as to the observable
symptoms that they report, and have been considered by the Board
in its evaluation of the severity of the Veteran's PTSD. See
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan
v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
The Veteran's current 10 percent evaluation contemplates
occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to perform
occupational tasks only during periods of significant stress, or;
symptoms controlled by continuous medication. 38 C.F.R. § 4.130,
Diagnostic Code 9411.
As noted above, GAF scores are a scale reflecting the
"psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness." Carpenter, 8
Vet. App. at 242. The Veteran's GAF score of 50 reflects serious
symptoms or any serious impairment in social, occupational, or
school functioning. The Veteran's GAF scores of 52, 55, and 60
show moderate symptoms or moderate difficulty in social,
occupational, or school functioning. The Veteran's GAF scores of
65 reveal some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functioning
pretty well, and has some meaningful relationships. See DSM-IV
at 46-47.
Although GAF scores are important in evaluating mental disorders,
the Board must consider all the pertinent evidence of record and
set forth a decision based on the totality of the evidence in
accordance with all applicable legal criteria. See Carpenter, 8
Vet. App. at 242. Accordingly, an examiner's classification of
the level of psychiatric impairment, by word or by a GAF score,
is to be considered but is not determinative of the percentage VA
disability rating to be assigned; the percentage evaluation is to
be based on all the evidence that bears on occupational and
social impairment. Id.; see also 38 C.F.R. § 4.126 (2010);
VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).
In this, and in other cases, only independent medical evidence
may be considered to support Board findings. The Board may not
base a decision on its own unsubstantiated medical conclusions.
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board may
only consider the specific factors as are enumerated in the
applicable rating criteria. See Massey v. Brown, 7 Vet. App.
204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628
(1992).
Accordingly, based on the analysis of the evidence as outlined
below, the Board finds that the evidence supports an initial
rating of 30 percent, but no more, for the Veteran's service-
connected PTSD.
Since the initial grant of service connection, the Veteran
reported symptoms including depressed mood, poor appetite, sleep
disturbance, decreased energy, flashbacks, avoidance of trauma-
related stimuli, memory trouble, agitation, anxiety, feelings of
guilt and worthlessness, and difficulty concentrating. He also
endorsed social isolation and withdrawal, diminished interest in
activities that he used to enjoy, avoidance of places such as
church because of fear of crowds, some suicidal and homicidal
ideation, nightmares, exaggerated startle response, detachment
and estrangement from others, intrusive thoughts and memories,
irritability, anger outbursts, hypervigilance, panic attacks, and
lack of trust. He reported that he regularly checked to ensure
that doors and windows were locked in his house. He noted that
he had a good relationship with his wife, with two of his three
biological children, and with all of his stepchildren, and that
he enjoyed fishing and woodworking. The Veteran's wife noted
that the Veteran slept in a recliner by the door instead of in
his bed, and that the Veteran's family did not visit for very
long because they thought that he was weird.
The medical evidence shows that the Veteran was regularly alert
and fully oriented with good grooming and hygiene. His thought
process was consistently logical and goal-directed and his speech
was always normal. Eye contact was good. Mood was described as
depressed, anxious, irritable, good, frustrated, and euthymic.
Affect was found to be normal, broad, appropriate, and depressed.
On various occasions, the Veteran endorsed auditory and visual
hallucinations. In addition, in several instances, the Veteran
reported suicidal and homicidal ideation without plan or intent.
Memory was consistently found to be normal or good, and insight
and judgment were fair or intact. Impulse control was either
limited or good, and the Veteran endorsed panic attacks.
After a thorough review of the evidence of record, the Board
concludes that the Veteran's symptoms more closely approximate
the requirements for a 30 percent evaluation than the currently
assigned 10 percent evaluation, as there is evidence of depressed
mood, anxiety, suspiciousness, panic attacks, and chronic sleep
impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411.
The Board finds, however, that an evaluation in excess of 30
percent is not for assignment in this case. While there is
evidence of disturbances in motivation or mood and difficulty
establishing and maintaining effective work and social
relationships, there is no evidence of flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty understanding complex
commands; memory impairment; impaired judgment; or impaired
abstract thinking. Id. Similarly, although there is some
evidence of suicidal ideation and obsessional rituals, there is
no evidence of speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances; or inability to establish and maintain effective
relationships. Id. Further, while there is some evidence of
grossly inappropriate behavior, as indicated by the Veteran's
report that he threw someone across the room when that person
touched him while the Veteran was asleep and that on one occasion
while hunting, the Veteran fired his gun everywhere as if in
Vietnam; and although the Veteran occasionally reported auditory
and visual hallucinations, the remainder of the evidence of
record does not show gross impairment in thought processes or
communication; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; or memory loss for names of
close relatives, own occupation, or own name. Thus, although the
evidence of record may demonstrate some of the symptomatology
contemplated in a 50 percent evaluation, a 70 percent evaluation,
and a 100 percent evaluation, the Veteran's disability picture
more closely corresponds to the requirements for a 30 percent
evaluation. Thus, as the evidence does not more nearly
approximate an evaluation greater than 30 percent, an increased
evaluation in excess of 30 percent is not warranted for the
Veteran's PTSD.
The Board has also considered the Veteran's symptoms which are
not specifically contemplated by the Rating Schedule, such as
sleep disturbance, nightmares intrusive thoughts and memories,
avoidance of trauma-related stimuli, exaggerated startle
response, flashbacks, feelings of guilt and worthlessness,
hypervigilance, poor appetite, and decreased energy. While those
symptoms certainly contribute to the impairment caused by the
Veteran's PTSD, they do not show occupational and social
impairment with reduced reliability and productivity;
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood; or total occupational and social impairment
sufficient to warrant an evaluation in excess of 30 percent.
Mauerhan, 16 Vet. App. 436. For the foregoing reasons, an
initial evaluation greater than 30 percent for service-connected
PTSD is not warranted.
Generally, evaluating a disability using either the corresponding
or analogous diagnostic codes contained in the Rating Schedule is
sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2010). However,
because the ratings are averages, it follows that an assigned
rating may not completely account for each individual veteran's
circumstance, but nevertheless would still be adequate to address
the average impairment in earning capacity caused by disability.
In exceptional cases where the rating is inadequate, it may be
appropriate to assign an extraschedular rating. 38 C.F.R. §
3.321(b) (2010).
The threshold factor for extraschedular consideration is a
finding that the evidence before VA presents such an exceptional
disability picture that the available schedular evaluations for
that service-connected disability are inadequate, a task
performed either by the RO or the Board. Id.; see Thun v. Peake,
22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet.
App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there
are 'exceptional or unusual' factors which render application of
the schedule impractical"). Therefore, initially, there must be
a comparison between the level of severity and symptomatology of
the Veteran's service-connected disability with the established
criteria found in the Rating Schedule for that disability. Thun,
22 Vet. App. at 115. If the criteria reasonably describe the
Veteran's disability level and symptomatology, then the Veteran's
disability picture is contemplated by the Rating Schedule, the
assigned schedular evaluation is, therefore, adequate, and no
referral is required.
The Board finds that the Veteran's PTSD is not so unusual
exceptional in nature as to render the rating for this disorder
inadequate. The criteria by which the Veteran's PTSD is
evaluated specifically contemplate the level of impairment caused
by that disability. Id. As demonstrated by the evidence of
record, the Veteran's PTSD is manifested by depressed, anxious,
irritable, euthymic, good, and frustrated mood; normal, broad,
appropriate, or depressed affect; intrusive memories; nightmares;
flashbacks; exaggerated startle response; anger outbursts;
detachment and estrangement from others; social isolation and
withdrawal; sleep disturbance; limited or good impulse control;
hypervigilance; irritability; panic attacks; avoidance of trauma-
related stimuli; suicidal and homicidal ideation without plan or
intent; and feelings of guilt and worthlessness. The evidence
also shows that the Veteran had good grooming and hygiene; good
eye contact; normal speech; fair or intact insight and judgment;
logical thought process; and good or normal memory. When
comparing this with the symptoms contemplated in the Rating
Schedule, the Board finds that the schedular evaluation regarding
the Veteran's PTSD is not inadequate. An evaluation greater than
30 percent is provided for certain manifestations of PTSD, but
the medical evidence reflects that those findings are not present
in this case. Therefore, the schedular evaluation is adequate
and no referral is required.
After review of the evidence of record, there is no evidence of
record that would warrant a rating in excess of 30 percent for
the Veteran's service-connected PTSD at any time during the
period pertinent to this appeal. 38 U.S.C.A. 5110 (West 2002);
see also Fenderson, 12 Vet. App. at 126. While there have been
day-to-day fluctuations in the manifestations of the Veteran's
service-connected PTSD, as evidenced by the improvement occurring
with medication increases, the evidence shows no distinct periods
of time since service connection became effective, during which
the Veteran's PTSD has varied to such an extent that a rating
greater or less than 30 percent would be warranted. Cf. 38
C.F.R. § 3.344 (2010) (VA will handle cases affected by change of
medical findings or diagnosis, so as to produce the greatest
degree of stability of disability evaluations).
Last, a claim for entitlement to a total disability rating based
on individual unemployability (TDIU) is part of an increased
rating claim when such claim is raised by the record. Rice v.
Shinseki, 22 Vet. App. 447 (2009). In that regard, the Veteran
testified that he had a difficult time keeping a job, noting that
he had close to 150 jobs in the prior 40 years and that the
longest he held a job was 3 years. However, the Veteran has not
contended, and the evidence does not show, that the Veteran is
unemployable as a result of his service-connected PTSD. In fact,
the October 2008 VA examiner reported that the Veteran's PTSD
symptoms "were not reported to affect his work life" and that
the Veteran's PTSD did not cause total occupational and social
impairment. On numerous occasions, the Veteran explained that he
was not working, that he stopped working due to a back injury,
and that he was receiving SSA disability benefits for his back
disability. In addition, during the October 2008 VA examination,
the Veteran reported that he tended to move often among
activities, including business pursuits, but that it was
difficult for him to relate this to his military traumas.
Accordingly, as the Veteran does not contend, and the evidence
does not show, that the Veteran is unemployable as a result of
his service-connected PTSD, the Board concludes that the issue of
entitlement to a TDIU has not been raised. Id.
ORDER
An initial evaluation of 30 percent, but no more, for the
Veteran's service-connected PTSD is granted, subject to the laws
and regulations governing the payment of monetary benefits.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs